GST Council: 18% tax on parent company’s guarantee to subsidiary, waives tax for director’s personal guarantees
October 7, 2023
The parent company’s corporate guarantee to its subsidiary for a bank loan will attract 18 per cent GST, recommended the GST Council on Saturday. However, there will be no GST if a director provides a personal guarantee for a loan from a bank or any financial institution to his/her own company.”
The council also recommend an amnesty scheme if an appeal is filed late, besides amending rules for appointment of President and Members of GST Appellate Tribunal. However, there is no change in recommendation related with 28 per cent GST on the full face value for online money gaming, casinos and horse racing.
“When the corporate guarantee is given by a director to a company then then the value of service will be deemed to be zero, hence no tax,” Revenue Secretary Sanjay Malhotra said at a press conference to announce recommendations of 52nd meeting of GST Council under the Chairpersonship of Finance Minister Nirmala Sitharaman in the national capital.
A statement issued by the Finance Ministry clarified that when no consideration is paid by the company to the director in any form, directly or indirectly, for providing personal guarantee to the bank/ financial instituitions on their behalf, the open market value of the said transaction/ supply may be treated as zero and hence, no tax to be paid. However, taxable value of supply of corporate guarantee provided between related parties (parent company and subsidiary) will be one per cent of the amount of such guarantee offered, or the actual consideration, whichever is higher.
According to Prateek Bansal, Partner, White and Brief, this appears to be in line with Schedule I of the CGST Act by virtue of which, the supply of goods and services or both between related persons, when made to further business, shall be treated as supply even if made without consideration. Vivek Jalan, Partner with Tax Connect Advisory says if the corporate guarantee was of ₹100 crore, then ₹18 lakh would be the GST liability.
Parag Mehta, Partner-Indirect tax at N.A. Shah Associates, emphasises the need for clarity regarding past transactions. He also points out that GST could become a cost for companies if they cannot recover it from their subsidiaries or group companies in the future.
Similarly, Asish Philip Abraham, Partner at Lakshmikumaran & Sridharan Attorneys, says deemed valuation of 1 percentage for guarantees between group entities is not in alignment with commercial reality and OECD guidelines on shareholder activities. “This will open a Pandora’s Box in relation to ongoing investigations for both domestic and international transactions with implications under FEMA and transfer pricing,” he apprehended.
[The Hindu Busienss Line]
